Mohalenyane Phakela

THE Constitutional Court has dismissed Basotho Patriotic Party (BPP) leader Tefo Mapesela’s application for an order compelling National Assembly Speaker, Sephiri Motanyane, to allow members of parliament to vote secretly in a proposed motion to oust Prime Minister Moeketsi Majoro.
In dismissing Mr Mapesela’s application, the Constitutional Court bench comprising of Chief Justice Sakoane Sakoane, judges Molefi Makara and Polo Banyane, on Friday ruled that MPs were “duty bound” to vote openly in parliament as there was no law supporting their motion to vote secretly.
Mr Mapesela initially filed the no confidence motion on 25 August 2021. It was seconded by Alliance of Democrats (AD) MP Kose Makoa. Mr Mapesela had followed it up with another motion for a secret ballot in September 2021. On 10 September 2021, Mr Motanyane told parliamentarians that he had approved the no confidence motion against Dr Majoro. He however, said voting on the motion would not be through secret ballot as proposed by Mr Mapesela in the interests of “transparency” and “openness”
Dissatisfied with Mr Motanyane’s decision, Messrs Mapesela and Makoa on 14 September 2021 petitioned the Constitutional Court for an order to allow MPs to vote secretly, arguing that it was their constitutional right to do so.
Mr Motanyane, the Clerk of the National Assembly Adv Fine Maema, the Business Committee of the National Assembly, the National Assembly, Attorney General Rapelang Motsieloa, members of parliament and Political Parties in Parliament were cited as first to seventh respondents respectively.
Messrs Mapesela and Makoa argued that the no confidence motion should be determined via a secret ballot to allow parliamentarians to freely vote without fear of repercussions.
They accused Dr Majoro of using the national security agencies to “intimidate” his All Basotho Convention (ABC) MPs who were allegedly in support of the no confidence motion.
They also accused Dr Majoro of violating the constitution and failing to govern in a transparent manner.
“I (Mapesela) and the second applicant (Makoa) as well as other members of the House require a secret ballot to vote on the motion of no confidence for fear of reprisals and retributions, and we would not be afforded substantial relief in due course at the hearing should the motion be debated and determined without the intervention of the court,” Mr Mapesela stated in his founding affidavit.
“Without a free exercise of voting by members of the House, the capacity of the House to play its oversight role is seriously undermined and whittled down, leading to a threat to constitutionalism. Such a vote by members of the House is ordinarily open/public except in special circumstances where it is required to be by secret ballot.”
Mr Mapesela said Lesotho’s National Assembly subscribes to principles, practices and procedures of members of parliament in the Southern African Development Community (SADC), the Commonwealth Parliamentary Association (CPA) and Inter-Parliamentary Union (IPU) “a substantial majority of which recognise and use secret ballot in motions of no confidence in special circumstances”.
Their application was first heard on 16 November 2021 by Justices Sakoane (presiding judge), Makara and Banyane.
In the Friday judgement, Justice Sakoane said they had dismissed the application on the grounds that there was no law in Lesotho which provided for a secret parliamentary ballot.
Only when parliament had enacted laws to provide for secret ballots to govern its proceedings, would MPS be allowed to vote in secret. In the absence of such laws, Mr Motanyane could not be blamed for refusing to order a secret ballot, Justice Sakoane said.
“The speaker’s admonition that the adoption of a secret ballot needs careful thought, consultation and agreement by members of parliament is a noble one,” Justice Sakoane said.
“Regard must be given to the public’s right to observe the proceedings of the National Assembly provided for in Standing Order Number 77.
“A mandatory rule for a secret ballot in passing motions of no confidence would deprive the public and voters access to the House to observe how each member votes on a matter of immense national importance of toppling a sitting prime minister and possibly his cabinet. A balance needs to be struck between protecting timid souls from the party whips and the revelation of their identities so that they can also be held accountable at the national polls.
“Because it is not for the speaker to move for the suspension, amendment or repeal of Standing Orders, I do not discern that he has any residual discretion to decide that a motion of no confidence should be voted on by secret ballot. Until the voting procedure of a visible collection of voices provided in Standing Order 46 and 48 are amended by the House to cater for a secret ballot, members are duty-bound to vote in accordance with this procedure without fear of retaliatory action by the executive. The members’ constitutional responsibilities of effective, robust oversight are sacred. They must reject the spirit of fear of retaliation, loss of popularity or patronage. Members should be bothered less about their security, loss of popularity or patronage but more about ensuring effective delivery of service and good governance. That is where their security and popularity lie.
“After all, members who are unhappy about the performance of a ruling party, are free to leave it and thereafter bring its downfall. This is in keeping with political honesty. Political morality is the hygiene that is needed to embed and sustain the citizens’ faith in our young democracy. In the result, the application is dismissed and parties to pay their own costs (legal).”
Justices Makara and Banyane concurred with Justice Sakoane’s ruling.